Smith v. Maytag Corp.
Decision Date | 16 March 1995 |
Docket Number | No. A94A1979,A94A1979 |
Citation | 455 S.E.2d 379,216 Ga.App. 676 |
Parties | SMITH et al. v. MAYTAG CORPORATION et al. |
Court | Georgia Court of Appeals |
Stanley G. Jackson, Augusta, for appellants.
McAlpin & Henson, Kirk M. McAlpin, Jr., Pursley, Howell, Lowery & Meeks, R. Harold Meeks, Jr., Atlanta, for appellees.
Smith and Cook, sole shareholders and directors of TWS, Inc., and TWS, Inc. appeal from the trial court's grant of summary judgment to defendants Maytag Corporation, Amerivend Southeast Corporation, formerly known as The Richard Company, Inc. (The Richard Company), and Owens, a salesman for Amerivend. 1
The summary judgment to Amerivend and Owens was awarded on the basis of res judicata, based on prior litigation initiated by Park Leasing Company against TWS, Inc. and Smith. In that suit, TWS, Inc. and Smith counterclaimed against Park Leasing and recovered on their counterclaims for violation of the Sale of Business Opportunities Act (SOBA). Park Leasing Co. v. TWS, Inc., 206 Ga.App. 864, 426 S.E.2d 620 (1992).
The grounds urged in support of the motion for summary judgment by Maytag were numerous and the order granting summary judgment does not specify its legal basis. We have examined the pleadings and record and conclude that the only issue necessary for us to consider as to Maytag is that of agency, for without that, there is no linchpin for the liability of Maytag.
1. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).
Maytag manufactures appliances, including commercial washers and dryers. As reflected in Park, supra, The Richard Company, now Amerivend, is in the business of distributing Maytag equipment, although its products are not limited to Maytag products. The following paragraph is contained in the Commercial Distributorship Agreement between Maytag and The Richard Company:
Maytag Financial Services Corporation (MFSC) is a wholly owned subsidiary of Maytag which is in the business of providing distributors selling Maytag products "with a means of leasing MFSC Related Products to their customers." As such, it entered into an agreement with Park Leasing Company whereby Park would provide administrative services for leases between MFSC and its lessees and would be authorized to use the name "Maytag Financial Services Corporation" in its leases. On March 15, 1989, MFSC (Park Leasing) and TWS, Inc. entered into an agreement whereby TWS would lease listed Maytag commercial laundry equipment for TWS' Laundromat in Savannah. Nine of the pieces of equipment were previously owned by Park Leasing and the other twenty-five pieces were purchased by The Richard Company from Maytag for the purpose of leasing them to TWS, Inc.
The equipment lease provided in paragraph 22:
When the laundromat was not successful, TWS, Inc. and Smith as guarantor were sued by Park Leasing Company for the remainder of the lease payments due on the equipment. TWS and Smith then counterclaimed, alleging numerous claims against Park Leasing. The judgment in TWS and Smith's favor on their counterclaim was affirmed by this court which concluded that all damages were in fact awarded under the SOBA claim. Id. This court upheld the jury's factual determination that The Richard Company was the agent of Park Leasing for purposes of the transactions with TWS and held Park Leasing responsible for representations made by Owens, The Richard Company salesman, which were alleged to be false and violative of the SOBA.
Maytag supplied product information to its distributors, including a brochure concerning the "Maytag Equipped Just Like Home Laundry." Included with this material is an explanatory letter which states
In response to the affirmative statement of Maytag's corporate secretary that The Richard Company was not the agent of Maytag, as opposed to Park Leasing d/b/a Maytag Financial Services, Inc., appellants present their conclusions and assumptions based, among other things, on the product brochure.
" Thomas v. Schouten, 210 Ga.App. 244, 246, 435 S.E.2d 746 (1993).
McMullan v. Ga. Girl Fashions, 180 Ga.App. 228, 229-230(2), 348 S.E.2d 748 (1986).
Even assuming, without deciding, that the Maytag/The Richard Company distributorship agreement created a franchise arrangement, the mere use by a franchisee of the franchisor's trademark does not create sufficient evidence to allow the question of apparent agency to survive Maytag's motion for summary judgment. Texaco v. Youngbey, 211 Ga.App. 789, 790, 440 S.E.2d 533 (1994); McGuire v. Radisson Hotels Intl., 209 Ga.App. 740, 742(1), 435 S.E.2d 51 (1993); McMullan, supra; Wiggins v. Home Owners Warranty Council, Etc., 168 Ga.App. 777, 310 S.E.2d 554 (1983). Also, the record does not contain admissible evidence that Maytag Corporation, as opposed to a subsidiary or other company, committed affirmative acts indicating that Park Leasing was its agent so as to justify reliance by TWS or Cook and Smith. Compare Nat. Carloading Corp. v. Security Van Lines, 164 Ga.App. 850, 853(5), 297 S.E.2d 740 (1982) and Triple "C" Recreation Assn. v. Cash, 124 Ga.App. 754, 756(2), 186 S.E.2d 145 (1971). In light of the language contained in the distributorship agreement, the trial court's grant of summary judgment to Maytag was proper, because there was no showing made that Maytag Corporation exercised such control over Park Leasing or The Richard Company to make either corporation...
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